Kells v Mulligan & Anor [2002] NSWSC 769

New South Wales Supreme Court

CITATION : Kells v Mulligan & Anor [2002] NSWSC 769 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11601 of 2002 HEARING DATE(S) : 21 August 2002 JUDGMENT DATE : 29 August 2002

John Jervis Kells (Plaintiff) PARTIES : v Kevin Patrick Mulligan & Anna Lucia Mulligan (Defendants) JUDGMENT OF : Master Malpass

LOWER COURT Costs Assessment JURISDICTION : LOWER COURT 91746 of 2001 FILE NUMBER(S) : LOWER COURT Christopher Phillip Wall JUDICIAL OFFICER :

Mr M J Watts (Plaintiff) COUNSEL : Mr S A Benson (Defendants)

SOLICITORS : John J Kells (Plaintiff) David H Cohen & Co (Defendants) CATCHWORDS : Appeal from panel - function of panel - failure to correct error of law - discretionary power to determine that interest is not payable. Legal Profession Act 1987, s 190, s 208E, LEGISLATION CITED : s 208KC, s 208KC (3), s 208L. Supreme Court Act 1970, s 94. CASES CITED : Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321. DECISION : See paragraph 28.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Thursday 29 August 2002

11601 of 2002 John Jervis Kells v Kevin Patrick Mulligan & Anor

JUDGMENT 1 Master: The plaintiff is a solicitor. He provided legal services for the defendants. 2 He did work in relation to proceedings in the Children's Court (concerning a matter of custody in relation to a child of the defendants). Also, he did work in relation to Supreme Court proceedings (concerning declaratory relief in relation to the proceedings in the Children's Court). There is dispute between the parties as to whether or not he was instructed to commence the Supreme Court proceedings. 3 Costs have been paid in the sum of $3,400. The plaintiff rendered a bill of costs. It sought a sum in the order of $14,000. The court has been told that there was issue between the parties on the question of interest on unpaid costs. The plaintiff made an application for assessment of costs and the assessment was referred to a Costs Assessor (Mr Wall). 4 He was provided with certain documentation (including solicitor's files). After receiving objections and answers thereto, the Costs Assessor completed the assessment. The Costs Assessor determined the costs in a sum in the order of $11,000 (this left a balance of $7,691 to be paid). His certificate was issued on 8 March 2002. In a letter dated 8 March 2002, the Costs Assessor set out his reasons. 5 It suffices at this stage to refer merely to certain of the matters set forth in the reasons. The Costs Assessor found against the plaintiff on questions of disclosure and this led him to assess the costs on the basis of what was fair and reasonable. He determined an hourly rate. He made a decision that there be no interest on the amount of costs. He determined that the defendants had not instructed the plaintiff to commence the Supreme Court proceedings and disallowed all costs for those proceedings. 6 The plaintiff made an application for review to a Panel. A review was undertaken and the Panel affirmed the determination of the Costs Assessor. A certificate was issued on 24 May 2002. 7 The plaintiff has brought proceedings in this Court by way of appeal. Relief is now sought under s 208L of the Legal Profession Act 1987 (the Act), even though the process had been drafted in terms of an application for leave to appeal. The defendants did not object to this course but reserved their position as to costs. A challenge is now made only in respect of two matters (the decision made concerning interest and the Supreme Court proceedings). A challenge to other matters was abandoned. 8 Before proceeding further, I should mention certain things. It appears that the court file has gone astray. The court now has before it only some of the documentation. This documentation had been made available as part of a dummy file. The content of this material could have been seen as indicating an intention to rely on matter that had not been placed before the Costs Assessor. Fortunately, it was not sought to tender any such material and the court had placed before it the material made available to the Costs Assessor (Exhibit A). 9 I have carefully considered the documentation and the submissions made to the court on the hearing of the appeal. The plaintiff bears the onus of demonstrating an entitlement to relief. 10 In an appeal brought pursuant to s 208L the plaintiff must demonstrate an error of law which justifies the disturbing of a decision made by the Costs Assessor. 11 I shall firstly deal with the question of whether or not the plaintiff was instructed to commence the Supreme Court proceedings. The defendants raised this as an issue in their objections. 12 What the Costs Assessor said on this matter appears in paragraph 8 of his reasons. He said that the clients say that they did not give instructions and he said inter alia that there was nothing in the solicitor's files that he could find indicating the clients' instruction to commence proceedings in the court at the time those proceedings were commenced. He saw no advice and commented on the prospects of success. This latter comment was not a matter raised by the objections and seems to have been treated by the parties as a matter not going to his decision. 13 It may be observed that it would seem inappropriate to describe as a "version" that which had been only raised on objection. However, I now put that consideration aside. 14 The solicitor's file has been placed before this Court. It is not disputed that it contains material relevant to the matter of instructions. Indeed, it may not be in dispute that such evidence was at the very least of considerable weight. 15 I shall briefly mention certain of the material. There was a file note dated mid June 01. It records inter alia receiving instructions by telephone to proceed to file Summons in the Supreme Court. The file contained the Summons which commenced the proceedings (it was filed on 22 June 2001) and two affidavits sworn on 19 June 2001 in support of the Summons. The defendants were the deponents of the affidavits. Also, there was a statement from the plaintiff recording his instructions to commence the proceedings and an affidavit sworn by Mr McKerrall supporting that statement. 16 In addition to these matters, there was also correspondence from the solicitors who subsequently acted for the defendants (David H Cohen & Co). A letter dated 27 February 2002, alleged that no instructions had been provided by the defendants. A subsequent letter dated 8 April 2002 presented a contrary stance. It appears that the defendants had paid moneys to the plaintiff for filing fees to enable the commencement of the Supreme Court proceedings. In the subsequent letter, it was said that it was not disputed that these moneys were to cover the filing fee for the Supreme Court proceedings. 17 It is well established that a wrong finding of fact does not constitute an error of law. As I understand the position taken by the defendants in this hearing, issue was not joined on whether or not there had been a wrong finding of fact. Their case was that there was no error of law. 18 In this case, the Costs Assessor merely had the objection raised by the defendants. This was inconsistent with what had been said by their subsequent solicitors concerning the money provided for filing fees. In support of the plaintiff's submission, he had inter alia the evidentiary material that has been referred to. In my view, the decision made by the Costs Assessor concerning the matter of instructions to commence the proceedings in the Supreme Court was not reasonably open (Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321). What there was before him did not provide any basis for his decision. I am satisfied that there was an error of law which justifies the disturbing of this decision.